Ivonne Perez Velasquez and Hector Velasquez v. Land of Make Believe and Christopher Maier

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1239-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 14, 2012

Before Judges Graves and Haas.

Plaintiffs Ivonne Perez Velasquez and Hector Velasquez appeal from the trial court's August 19, 2011 Order dismissing their personal injury complaint. The court ruled that plaintiffs had failed to present a liability expert and that, without such an expert, they could not establish negligence. Plaintiffs argue that the court erred in making this ruling. We disagree with plaintiffs and affirm.

On July 4, 2009, plaintiff Ivonne Perez Velasquez visited defendant amusement park. She went to a section of the park that featured wading pools and slides. Before entering this attraction, plaintiff alleges that she was told by an attendant to remove her water shoes. In this area, there was a large bucket full of water. When a bell rang, the bucket would turn over and dump water on the patrons standing underneath it. According to plaintiff, this area of the park was "crowded" on that day. The bell rang and park guests began to run toward the bucket. As that occurred, a large man fractured plaintiff's left great toe when he stepped on her foot.*fn1

Plaintiffs did not produce an expert report. After the discovery period ended, defendants filed a motion for summary judgment and asserted that, without expert testimony, plaintiffs could not prove that the park was negligent or that any action by its employees was the proximate cause of Ms. Velasquez's injury. In response, plaintiffs argued that jurors could, based upon their common experience, understand that the park was "overcrowded," that there was an insufficient number of attendants and that Ms. Velasquez should not have been directed to remove her water shoes before entering the attraction.

The trial court rejected plaintiffs' argument. The court found that, without expert testimony, a jury would be left to speculate as to whether there are any safety regulations that apply to water parks and whether defendants complied with those regulations. The court therefore granted defendants' motion for summary judgment and dismissed plaintiffs' complaint. This appeal followed.

There was no dispute as to the material facts underlying plaintiffs' motion. We therefore turn to plaintiffs' legal contention. Plaintiffs argue that, based upon their "common experience and knowledge," a jury would be fully capable of making its own determination as to defendants' duty to Ms. Velasquez and whether defendants' actions were the proximate cause of her injury. We do not find this argument persuasive.

The need for expert testimony in a tort action depends on "'whether the matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a valid judgment . . . .'" Scully v. Fitzgerald, 179 N.J. 114, 127 (2004) (quoting Butler v. Acme Markets, Inc., 89 N.J. 270, 283 (1982)). Its purpose is to "assist the trier of fact to understand the evidence or to determine a fact in issue." N.J.R.E. 702. Accordingly, jurors should have the assistance of experts when required to determine issues necessitating specialized knowledge. Jobes v. Evangelista, 369 N.J. Super. 384, 399 (App. Div.), certif. denied, 180 N.J. 457 (2004). However, "when the subject can be understood by jurors utilizing common knowledge and experience," it is not necessary. Campbell v. Hastings, 348 N.J. Super. 264, 270 (App. Div. 2002).

Expert testimony was clearly required in this case. Amusement parks, like defendants' facility, are strictly regulated in New Jersey under the terms of the Carnival-Amusement Rides Safety Act. N.J.S.A. 5:3-31 to -59. Water parks, which feature "water-based recreational amusement," are expressly covered by the Act. N.J.S.A. 5:3-55. The Act authorizes the Commissioner of the Department of Community Affairs to promulgate regulations governing the safe operation of these facilities. N.J.S.A. 5:3-36.

The Department's regulations governing water parks are set forth at N.J.A.C. 5:14A-12.1 to -12.9. Under the regulations, the area of the park where Ms. Velasquez was allegedly injured is deemed an "aquatic activity area," which the regulations define as an area containing aquatic play equipment that is designed to "squirt, shoot, spray, dump, discharge, or disperse water intended to come in contact with people for recreational purposes." N.J.A.C. 5:14A-12.2. The regulations set forth standards for the owner's responsibility for park attractions, N.J.A.C. 5:14A-12.3; minimum criteria for the design, manufacture and construction of aquatic activity areas, N.J.A.C. 5:14A-12.5, and operation and staffing requirements, N.J.A.C. 5:14A-12.6.

Contrary to plaintiffs' arguments, jurors would not be familiar with this comprehensive regulatory scheme. Permitting plaintiffs to present their lay opinions as to whether defendants should have operated the park in a particular fashion would plainly invite jury speculation. Absent an expert, there would be no proof that defendants' staffing level at the time of the incident, or the manner in which the attraction was operated, violated the regulatory requirements. Under these circumstances, the trial court properly concluded that, because plaintiffs did not present an expert, their complaint had to be dismissed.

Affirmed.

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